Drones and Due Process: A Contrary View from a Tea Party 'Extremist'

Most of the talk about Obama's use of drones to kill terrorists has focused on the killing in Yemen of two Americans: Anwar al-Awlaki and then his teenage son two weeks later.

To date, so far as we know, Obama has issued kill orders only for Islamic terrorists in far-off lands. While liberals and conservatives scramble to justify or vilify, few Americans are terribly concerned.

And yet, they should be.

The Obama administration has released a White Paper that speaks only of targeting senior operational leaders of al-Qaeda or an associated force of al-Qaeda. Yet this document leaves the door open to a chilling expansion of the use of drones to kill other Americans (emphasis supplied):

The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances, including an operation against enemy forces on a traditional battlefield or an operation against a U.S. citizen who is not a senior operational leader of such forces.

Herbert W. Titus and William J. Olson have written here in American Thinker that "from the white paper, it is not clear why killings of U.S. citizens on American soil would be judged by a different standard."

They might have added that neither is it clear why killings of citizens who are not Islamic terrorists would be judged by a different standard.

And therein is the interest to this writer -- and, I might add, therein ought to be the interest to anyone who the federal government has identified as a potential threat -- which is virtually every supportive reader of American Thinker (see my prior article "Wargaming Termination of Tea Party Extremists").

Still, despite all of our federal government's focus on (I hesitate to use the word "targeting," although that's what it is) Tea Party and other staunch conservatives as potential threats, I mostly support Obama's use of drones to take out Islamic terrorists. I herewith set forth a supporting argument.

According to the White Paper, the standards for targeting a U.S. citizen are simple:

The individual must constitute an "imminent" threat (expansively defined such that there is no need to identify a specific target or plan),

Capture must be infeasible, and

The actions taken must be consistent with "war" principles, which mostly mean that if the subject waives a white flag, he will be spared.

So far, so good. The real problem is that there is absolutely zero mechanism for any sort of review of the determinations made by the "high-ranking" officials who will decide who should be killed. It seems that Obama wants to target people, kill them, and get back to lining up his putt -- all without any oversight or review.

"Judge" Andrew P. Napolitano has written, here and here, two scathing articles that tear to shreds Obama's justifications. His analysis is basically that Obama is not conducting a war, and therefore he must be conducting a law-enforcement action, for which he clearly lacks provisions for and adherence to constitutional due process.

While Napolitano's articles are excellent and worthy of careful study, my quibble is that he applies norms that don't fit the circumstances.

Terrorism is asymmetrical warfare; "war" and "law-enforcement/due process" issues are mixed in a way that renders inapposite the associated rules.

Due Process implies that we have time for a process, yet in war we do not. And clearly, we are at war with Islamic terrorists.

War implies that we do not have the ability to second-guess -- nor should we even consider second-guessing, except in the most egregious situations -- those taking incoming fire. Yet, sitting afar in a drone room, no such exigencies pertain.

Here, with terrorism, we have something different. Nuance is necessary.

For example, Judge Napolitano makes the point that "expressive" conduct, or threatening words alone, are insufficient to justify military force:

That's the reason the enabling federal legislation enacted in support of the 2001 Authorization for Use of Military Force specifically exempts expressive conduct from the ambit of prohibited criminal or warlike behavior that can provide the basis for any government prosecution or military belligerence. So, the feds can shoot at a guy with a bomb in his hands when he is about to explode it, but not at a guy with a megaphone in his hands when he is about to speak through it.

But, doesn't this raise the question of exactly what is a threat of hostile and lethal action against America? Isn't that guy with a megaphone just as capable of pressing a button on his chest or calling out on that megaphone to his fellow terrorists to press the buttons on their chests -- in every Starbucks in Chicago?

In other words, where our "rules" of war and our "modes of due process" contemplate that words alone are insufficient to justify lethal force, in this day of terrorism and wild-eyed calls for jihad, we may have to rethink exactly what constitutes a lethal threat.

To the point, Obama is also right when he claims that an "imminent" threat justifying a drone strike may not involve knowledge of a specific action. That is, we know terrorists are plotting something; we just don't know what. The reality is that they select the time and place for attack, not us. Thus, just as we need AR-15s with 30-round magazines to deal with bad guys smashing their way into our homes at three a.m., we need the war fighter to attack terrorists when and wherever he finds them -- with AK-47 or megaphone in hand. Indeed, the situation requires quick action worldwide, as terrorists need only dial a phone, press a button, or call out on that megaphone "allahu Akbar," and kaboom. Americans die halfway around the world -- in Yemen.

Or Chicago.

Nevertheless, precisely because this is not the "confused" battlefield where "fog of war" prevails to inhibit contemplation and accurate reporting, post-operation review is very easy and, considering that we are dealing with U.S. citizens who otherwise ought to have constitutional niceties, very appropriate.

Moreover, as many have noted, including Judge Napolitano, the genius of our entire Constitution, of everything we stand for as a country, is predicated on just treatment. And by just we mean fair, impartial application of law.

Thus, when we allow the police to write their own criminal code, when we allow a president to draft his own justification for killing, and then he goes off and kills, we have entered a realm, without thoughtful and fair review thereof, which only one word can describe: tyranny.

So, thankfully, according to a Fox News report, U.S. senators are considering an "assassination court" to provide some check on the "ever-expanding" drone program:

The idea was bandied about during ... [the recent] confirmation hearing for CIA director nominee John Brennan, who fueled the talk by saying he thinks the concept is "worthy of discussion." The nominee, as a vocal supporter of the targeted-killing program, has come under scrutiny for what some lawmakers see as the administration's unchecked power to kill, even if the target is an American citizen.

Speaking directly to the issue, Mr. Brennan said:

Our judicial tradition is that a court of law is used to determine one's guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists[.] ... Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives.

Mr. Brennan is right, to a point. This is the reality of the situation. However, when he goes on to note that use of this power is "inherently [an] Executive Branch function" and therefore to suggest that it's not subject to any sort of review, we need to raise our eyebrows and apply a break to what has become a pretty imperial administration.

In short, this is a new day with new threats. New solutions need to be devised. Due process must mean something, but we must not allow our Constitution, designed to protect us, to embroil us in a judicial process that will allow bad guys -- even bad Americans -- to kill innocent Americans. Arguably and perhaps ultimately, we may need a constitutional amendment addressing asymmetrical warfare brought to us by the "Religion of Peace" in a way that balances due process with the need to protect Americans.

Simply put, we must rethink what Islam is bringing to America. We must not allow Islamists to set off a dirty nuclear bomb on the streets of Manhattan while some clerk rushes to the courthouse with a motion for a protective order.

Postscript: Among others, Lt. Col. (Retired) Anthony Shaffer, senior fellow with the Center for Advanced Defense Studies, has noted that, by killing and not capturing these high-level al-Qaeda operatives, the Obama administration has significantly reduced intelligence-gathering. Obviously, this is an ominous development which must be carefully examined.

Most of the talk about Obama's use of drones to kill terrorists has focused on the killing in Yemen of two Americans: Anwar al-Awlaki and then his teenage son two weeks later.

To date, so far as we know, Obama has issued kill orders only for Islamic terrorists in far-off lands. While liberals and conservatives scramble to justify or vilify, few Americans are terribly concerned.

And yet, they should be.

The Obama administration has released a White Paper that speaks only of targeting senior operational leaders of al-Qaeda or an associated force of al-Qaeda. Yet this document leaves the door open to a chilling expansion of the use of drones to kill other Americans (emphasis supplied):

The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances, including an operation against enemy forces on a traditional battlefield or an operation against a U.S. citizen who is not a senior operational leader of such forces.

Herbert W. Titus and William J. Olson have written here in American Thinker that "from the white paper, it is not clear why killings of U.S. citizens on American soil would be judged by a different standard."

They might have added that neither is it clear why killings of citizens who are not Islamic terrorists would be judged by a different standard.

And therein is the interest to this writer -- and, I might add, therein ought to be the interest to anyone who the federal government has identified as a potential threat -- which is virtually every supportive reader of American Thinker (see my prior article "Wargaming Termination of Tea Party Extremists").

Still, despite all of our federal government's focus on (I hesitate to use the word "targeting," although that's what it is) Tea Party and other staunch conservatives as potential threats, I mostly support Obama's use of drones to take out Islamic terrorists. I herewith set forth a supporting argument.

According to the White Paper, the standards for targeting a U.S. citizen are simple:

The individual must constitute an "imminent" threat (expansively defined such that there is no need to identify a specific target or plan),

Capture must be infeasible, and

The actions taken must be consistent with "war" principles, which mostly mean that if the subject waives a white flag, he will be spared.

So far, so good. The real problem is that there is absolutely zero mechanism for any sort of review of the determinations made by the "high-ranking" officials who will decide who should be killed. It seems that Obama wants to target people, kill them, and get back to lining up his putt -- all without any oversight or review.

"Judge" Andrew P. Napolitano has written, here and here, two scathing articles that tear to shreds Obama's justifications. His analysis is basically that Obama is not conducting a war, and therefore he must be conducting a law-enforcement action, for which he clearly lacks provisions for and adherence to constitutional due process.

While Napolitano's articles are excellent and worthy of careful study, my quibble is that he applies norms that don't fit the circumstances.

Terrorism is asymmetrical warfare; "war" and "law-enforcement/due process" issues are mixed in a way that renders inapposite the associated rules.

Due Process implies that we have time for a process, yet in war we do not. And clearly, we are at war with Islamic terrorists.

War implies that we do not have the ability to second-guess -- nor should we even consider second-guessing, except in the most egregious situations -- those taking incoming fire. Yet, sitting afar in a drone room, no such exigencies pertain.

Here, with terrorism, we have something different. Nuance is necessary.

For example, Judge Napolitano makes the point that "expressive" conduct, or threatening words alone, are insufficient to justify military force:

That's the reason the enabling federal legislation enacted in support of the 2001 Authorization for Use of Military Force specifically exempts expressive conduct from the ambit of prohibited criminal or warlike behavior that can provide the basis for any government prosecution or military belligerence. So, the feds can shoot at a guy with a bomb in his hands when he is about to explode it, but not at a guy with a megaphone in his hands when he is about to speak through it.

But, doesn't this raise the question of exactly what is a threat of hostile and lethal action against America? Isn't that guy with a megaphone just as capable of pressing a button on his chest or calling out on that megaphone to his fellow terrorists to press the buttons on their chests -- in every Starbucks in Chicago?

In other words, where our "rules" of war and our "modes of due process" contemplate that words alone are insufficient to justify lethal force, in this day of terrorism and wild-eyed calls for jihad, we may have to rethink exactly what constitutes a lethal threat.

To the point, Obama is also right when he claims that an "imminent" threat justifying a drone strike may not involve knowledge of a specific action. That is, we know terrorists are plotting something; we just don't know what. The reality is that they select the time and place for attack, not us. Thus, just as we need AR-15s with 30-round magazines to deal with bad guys smashing their way into our homes at three a.m., we need the war fighter to attack terrorists when and wherever he finds them -- with AK-47 or megaphone in hand. Indeed, the situation requires quick action worldwide, as terrorists need only dial a phone, press a button, or call out on that megaphone "allahu Akbar," and kaboom. Americans die halfway around the world -- in Yemen.

Or Chicago.

Nevertheless, precisely because this is not the "confused" battlefield where "fog of war" prevails to inhibit contemplation and accurate reporting, post-operation review is very easy and, considering that we are dealing with U.S. citizens who otherwise ought to have constitutional niceties, very appropriate.

Moreover, as many have noted, including Judge Napolitano, the genius of our entire Constitution, of everything we stand for as a country, is predicated on just treatment. And by just we mean fair, impartial application of law.

Thus, when we allow the police to write their own criminal code, when we allow a president to draft his own justification for killing, and then he goes off and kills, we have entered a realm, without thoughtful and fair review thereof, which only one word can describe: tyranny.

So, thankfully, according to a Fox News report, U.S. senators are considering an "assassination court" to provide some check on the "ever-expanding" drone program:

The idea was bandied about during ... [the recent] confirmation hearing for CIA director nominee John Brennan, who fueled the talk by saying he thinks the concept is "worthy of discussion." The nominee, as a vocal supporter of the targeted-killing program, has come under scrutiny for what some lawmakers see as the administration's unchecked power to kill, even if the target is an American citizen.

Speaking directly to the issue, Mr. Brennan said:

Our judicial tradition is that a court of law is used to determine one's guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists[.] ... Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives.

Mr. Brennan is right, to a point. This is the reality of the situation. However, when he goes on to note that use of this power is "inherently [an] Executive Branch function" and therefore to suggest that it's not subject to any sort of review, we need to raise our eyebrows and apply a break to what has become a pretty imperial administration.

In short, this is a new day with new threats. New solutions need to be devised. Due process must mean something, but we must not allow our Constitution, designed to protect us, to embroil us in a judicial process that will allow bad guys -- even bad Americans -- to kill innocent Americans. Arguably and perhaps ultimately, we may need a constitutional amendment addressing asymmetrical warfare brought to us by the "Religion of Peace" in a way that balances due process with the need to protect Americans.

Simply put, we must rethink what Islam is bringing to America. We must not allow Islamists to set off a dirty nuclear bomb on the streets of Manhattan while some clerk rushes to the courthouse with a motion for a protective order.

Postscript: Among others, Lt. Col. (Retired) Anthony Shaffer, senior fellow with the Center for Advanced Defense Studies, has noted that, by killing and not capturing these high-level al-Qaeda operatives, the Obama administration has significantly reduced intelligence-gathering. Obviously, this is an ominous development which must be carefully examined.